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HIGH COURT OF CALCUTTA
K. C. DAS GUPTA, DEBABRATA MOOKHERJEE
PROVAT KUMAR GHOSH - Appellant
Versus
STATE OF WEST BENGAL - Respondent
Criminal Revn. 879 Of 1956
Decided On : JULY 13, 1956
CRIMINAL PROCEDURE CODE - SECTION 207A - SCOPE AND APPLICABILITY - JOINT TRIAL OF OFFENCES UNDER SECTIONS 366 AND 498, I. P. C. - LEGALITY - SECTION 207A, CR. P. C. - EXAMINATION OF WITNESSES - POWER OF MAGISTRATE - SECTION 207A, CR. P. C. - CONSTITUTIONALITY - ARTICLE 14 OF THE CONSTITUTION - CLASSIFICATION BASED ON INDEX HAVING CLOSE AND RATIONAL CONNECTION WITH PURPOSE OF LEGISLATION - VALIDITY.
Fact of the Case:
The petitioner, Provat Kumar Ghose, was accused of offences under Sections 406, 366, and 498 of the Indian Penal Code (IPC). The Magistrate ordered a joint trial of the offences under Sections 366 and 498, IPC, and proceeded with an enquiry under Section 207A, CrPC, for the offence under Section 366, IPC. The petitioner challenged the legality of the joint trial and the enquiry under Section 207A, CrPC, and sought transfer of the case to another Magistrate.
Finding of the Court:
The High Court held that the order for joint trial of the offences under Sections 366 and 498, IPC, was illegal as the stage for trial of the offence under Section 366, IPC, had not yet arrived. The Court also held that the enquiry under Section 207A, CrPC, was limited to the offence under Section 366, IPC, and could not cover the offence under Section 498, IPC. The Court further held that the Magistrate had the right and duty to examine witnesses during the enquiry under Section 207A, CrPC, and that the enquiry could not be quashed on the ground that the documents forwarded by the Police did not make a prima facie case against the accused. The Court also rejected the petitioner's contention that Section 207A, CrPC, was ultra vires of the Constitution, holding that the classification between proceedings instituted on a police report and proceedings instituted otherwise than on a police report was based on clear and marked indices having close and rational connection with the purpose of the legislation. The Court also rejected the petitioner's prayer for transfer of the case to another Magistrate, holding that the mere fact that the Magistrate had refused a prayer for adjournment did not justify a reasonable minded man to apprehend that he would not get fair justice in the hands of the Magistrate.
Issues: 1. Whether the joint trial of the offences under Sections 366 and 498, IPC, was legal. 2. Whether the enquiry under Section 207A, CrPC, was limited to the offence under Section 366, IPC, and could cover the offence under Section 498, IPC. 3. Whether the Magistrate had the right and duty to examine witnesses during the enquiry under Section 207A, CrPC. 4. Whether the enquiry under Section 207A, CrPC, could be quashed on the ground that the documents forwarded by the Police did not make a prima facie case against the accused. 5. Whether Section 207A, CrPC, was ultra vires of the Constitution. 6. Whether the petitioner was entitled to transfer of the case to another Magistrate.
Ratio Decidendi: 1. The joint trial of the offences under Sections 366 and 498, IPC, was illegal as the stage for trial of the offence under Section 366, IPC, had not yet arrived. 2. The enquiry under Section 207A, CrPC, was limited to the offence under Section 366, IPC, and could not cover the offence under Section 498, IPC. 3. The Magistrate had the right and duty to examine witnesses during the enquiry under Section 207A, CrPC. 4. The enquiry under Section 207A, CrPC, could not be quashed on the ground that the documents forwarded by the Police did not make a prima facie case against the accused. 5. Section 207A, CrPC, was not ultra vires of the Constitution as the classification between proceedings instituted on a police report and proceedings instituted otherwise than on a police report was based on clear and marked indices having close and rational connection with the purpose of the legislation. 6. The petitioner was not entitled to transfer of the case to another Magistrate as the mere fact that the Magistrate had refused a prayer for adjournment did not justify a reasonable minded man to apprehend that he would not get fair justice in the hands of the Magistrate.
Final Decision: The Court set aside the order for joint trial of the offences under Sections 366 and 498, IPC, and directed the Magistrate to proceed with the enquiry under Section 207A, CrPC, in accordance with law as regards the offence under Section 366, IPC, and then take up the trial of the accused for the offence under Section 498, IPC, in accordance with law. The Court also rejected the petitioner's prayer for quashing the enquiry under Section 207A, CrPC, and for transfer of the case to another Magistrate.
( 1 ) THESE two Rules which were heard together relate to proceedings in connection with the taking away of one Ha Rani Choudhury from the house of her husband Ham Narayan Roy Choudhury and to criminal breach of trust in respect of certain ornaments said to have been entrusted by the said Ila Rani Choudhury to the petitioner Provat Kumar Ghose.
( 2 ) IT appears that on information given by the husband Ram Narayan Choudhury the Police started a case and after investigation they sent up charge sheet against the present petitioner Provat under Section 406, I. P. C. and under Section 363/120b against the present petitioner and two others. On perusal of the documents submitted along with the charge sheet, the learned Magistrate passed an order on 2-6-1956, directing that the offence under Section 406, I. P. C. shall be tried separately. In the meantime on 19-4-1956, the husband Ram Narayan filed a complaint before the Magistrate against the petitioner and two other persons accusing the petitioner of an offence under Section 498, I. P. C. and the other persons under Section 498/114, I. P. C. The learned Magistrate issued process against the petitioner under Section 498, I. P. C. On 2-6-1956, when, as already stated, he passed an order for separate trial of the offence under Section 406, I. P. C. , he made a further order that the offences under Section 366, I. P. C. and Section 498, I. P. C. shall be "tried" together. Proceeding thereafter apparently under Section 207a, Cr. P. C. the Magistrate has examined some witnesses in connection with the alleged offence under Sections 336 and 498, I. P. C. As regards the offence under Section 406, I. P. C. he started separate proceedings and proceeding under Section 251a, Cr. P. C. has framed a charge under Section 406, I. P. C. against Provat.
( 3 ) THESE two Rules were obtained by Provat for quashing of the different proceedings pending against him, for transfer of the case from the learned Magistrate to some other Magistrate and also for setting aside the order for joint trial of the offences under Sections 498 and 366, I. P. C.
( 4 ) IT is obvious that at the present stage there can be no order in law for the joint "trial" of the offences under Sections 366 and 498, I. P. C. Indeed, the stage for what can strictly be called "trial" of the offence under Section 366, I. P. C. has not yet arrived; that will arrive if the Magistrate after proceeding in the manner laid down in Section 207a, Cr. p. C. decides to commit him for trial. No one can say now whether the Magistrate will order him to be committed or whether he will pass order under the 6th sub-section of Section 207a, Cr. P. C. discharging the accused. To speak of a joint trial of the accused for the offences under Sections 366 and 498, I. P. C. at this stage is therefore meaningless. It is equally clear that the enquiry under Section 207a, Cr. P. C. must be limited by the Magistrate to the offence under Section 366,, I. P. C. and cannot cover the offence under Section 498, I. P. C. In the first place an offence under Section 498, I. P. C. is triable by the Magistrate and therefore no question of an enquiry does arise. This is not to say that if when trying the accused for an offence under Section 498, I. P. C. a Magistrate comes to the conclusion, in view of the special circumstances of the case or in view of some other case connected with the alleged offence under Section 498, I. P. C. being before a Sessions Court, that the offence under Section 498, I P. C. should also be tried by the Court of Sessions, he cannot commit him to the Court of Sessions for trial. He certainly can order in a pro-per case that the person accused of offence under Section 498, I. P. C. should also be committed to the Sessions, provided he has before that proceeded in the manner prescribed by law in Chapter XVIII of the Code of Criminal Procedure. Obviously, as the cognizance of the offence under Section 498, I. P. C. is taken by the
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